Each gives $250k for software patent reform, not elimination.

The Electronic Frontier Foundation is poised to expand its work on patent reform, announcing major gifts from two donors. Mark Cuban made his fortune during the dot-com boom of the 1990s and now owns the Dallas Mavericks. Markus "Notch" Persson is best known as the creator of Minecraft. Each will give the San Francisco nonprofit a quarter of a million dollars.

"The current state of patents and patent litigation in this country is shameful," Cuban said in a press release. "Silly patent lawsuits force prices to go up while competition and innovation suffer. That's bad for consumers and bad for business. It's time to fix our broken system, and EFF can help."

Julie Samuels is currently running EFF's "Defend Innovation" project, and she will now occupy the Mark Cuban Chair to Eliminate Stupid Patents. Thanks to Cuban's $250,000 donation, EFF will also be bringing another patent lawyer on board in January.

Persson is also donating $250,000. He says current policies put the nation on a "dangerous path." He argued that "new games and other technological tools come from improving on old things and making them better—an iterative process that the current patent environment could shut down entirely."

The patent system is in desperate need of reform, so we're happy to see EFF expand its patent reform efforts. But as we said when EFF announced the Defend Innovation project earlier this year, it's disappointing that EFF has continued to shy away from calling for the abolition of software patents altogether. The press release announcing the new donations talks about "reforming software patents" and "fixing software patents." So the organization continues its longstanding practice of not calling for their abolition, even though Cuban himself is on record as an advocate of ending all software patents.

When we talked to Samuels in June, she expressed agreement with the Supreme Court's trio of decisions restricting software patents in the 1970s and early 1980s. Those decisions are theoretically still binding precedents. But Samuels told us that "political realities" prevented EFF from officially endorsing the elimination of software patents. "We want to push for positions that are politically feasible," she told us.

Samuels is probably correct that abolishing software patents is not "politically feasible" in the short term. But while giant tech companies like Google and Cisco might be hemmed in by those political limitations, EFF shouldn't be. The role of a principled civil liberties organization like EFF is precisely to stand up for civil liberties even when the odds of victory seem slim.

Considerations of political expediency has not stopped EFF from advocating the abolition of warrantless wiretapping or the repeal of the anticircumvention provisions of the DMCA. Nor are "political realities" a good reason for EFF to compromise its principles on software patents. There are already plenty of technology companies on Capitol Hill lobbying for patent reform legislation that is "politically feasible."

Mark Cuban is an interesting guy. I can see why he wouldn't like patents (he probably wouldn't be successful if he was as hounded about patents like corporations do now), but it still seems a bit odd for him considering his tech portfolios. He usually does whatever is best for the bottom line. Maybe it means he wants to start heavily investing in startups that would be crushed by the patent system.

By this logic, it's hypocritical for a nation currently engaged in war to seek a truce.

Basically, companies have no choice but to engage in patent wars right now, because it's a competitive marketplace, and you have to take every advantage you can get, otherwise you get crushed. That doesn't mean many of these companies wouldn't like to see software patents go away so they can just forget about the whole boondoggle.

+1 for the awesome job title! It's good to see someone calling it how it is.

Cogmatix wrote:

The phrase "politically feasible" induces my gag reflex. I'm pleased to see Cuban and Persson putting some "political feasibility" into the right hands, nonetheless.

I've got mixed feelings about this. Once we've started to get some momentum, software patent elimination may actually be "politically feasible". If the EFF can get some actual movement in that direction, I'll take it, even if they set their sights a little lower than we would have liked....

It is SUPPOSED to be that you can't patent software. I fully agree with this stance. As a programmer, I know just how often I find myself take a piece of code that is similar to what I want to accomplish and putting into the system. From that point I will make the changes I want to make, but the code itself is a derivative. If that code was patented, I would have had to write all of the code myself, which would take more time and testing to complete. The end result would probably be similar looking code anyway, so I would still get hit with a patent lawsuit because it is similar.

That's the reason why software patents are ridiculous.

I'm not saying patenting an invention or new method isn't useful, but there have to be limits or we end up with the idiocy that is currently clogging our judicial system and innovation being ground to a halt.

The patent system is in desperate need of reform, so we're happy to see EFF expand its patent reform efforts. But as we said when EFF announced the Defend Innovation project earlier this year, it's disappointing that EFF has continued to shy away from calling for the abolition of software patents altogether. The press release announcing the new donations talks about "reforming software patents" and "fixing software patents." So the organization continues its longstanding practice of not calling for their abolition, even though Cuban himself is on record as an advocate of ending all software patents.

I'm a bit confused. Is it the official position of Arstechnica that all software patents should be abolished, or is that the opinion of the author? The link in the article directs to an Op-Ed piece by Timothy B. Lee.

It is SUPPOSED to be that you can't patent software. I fully agree with this stance. As a programmer, I know just how often I find myself take a piece of code that is similar to what I want to accomplish and putting into the system. From that point I will make the changes I want to make, but the code itself is a derivative. If that code was patented, I would have had to write all of the code myself, which would take more time and testing to complete. The end result would probably be similar looking code anyway, so I would still get hit with a patent lawsuit because it is similar.

That's the reason why software patents are ridiculous.

I'm not saying patenting an invention or new method isn't useful, but there have to be limits or we end up with the idiocy that is currently clogging our judicial system and innovation being ground to a halt.

The problem is there is no such thing as a software patent as a separate category, so when ignorant people whine about them, they just look silly.

Sorry dude.

The patent SYSTEM isn't the problem. The big problem is the patent OFFICE. They need to grant a lot fewer patents. THAT is the actual problem. If fewer patents were issued, this would be a lot less of an issue.

The problem is there is no such thing as a software patent as a separate category, so when ignorant people whine about them, they just look silly.

Sorry dude.

The patent SYSTEM isn't the problem. The big problem is the patent OFFICE. They need to grant a lot fewer patents. THAT is the actual problem. If fewer patents were issued, this would be a lot less of an issue.

I'd encourage you to read the link in my story about the past Supreme Court decisions. While the court doesn't use the phrase "software patent," it has clearly said you can't patent a mathematical algorithm. And software is nothing more than a collection of mathematical algorithms in machine-readable form.

While I somewhat understand their position, I find it very disappointing. I also think it is probably not the best negotiation technique even if reform is actually the goal. You drive a hard bargain, and then seem reasonable when you are negotiated down to the position you actually wanted. It's precisely what the other side of these 'IP' debates are doing, so why not do the same?

I'm a dev and all day long I stand on the shoulders of others. I didn't design the languages I use, the CPUs that host my code, the electricity that comes into my walls...nothing. Everything around me is/was provided--even the air I breath. It's humbling to really see the gifts I've been given. Hopefully by the end of my life I can look back and say I added _something_ to those who'll come after me. Maybe they'll stand a millimeter taller than I could, or have a reason to smile a little bigger than me.

Unworthy patents stymie this flow and trade societal evolution for profits. They take away health. It's like polluting a lake or consuming excessive resources or whatever. Maybe it doesn't hurt now, but we're screwing those who come after.

I applaud Notch and Cuban, and want to add to their momentum. Where/how can I donate $ or time to this? I don't want to be an objective observer anymore, because that's being part of the problem.

The problem is there is no such thing as a software patent as a separate category, so when ignorant people whine about them, they just look silly.

Sorry dude.

The patent SYSTEM isn't the problem. The big problem is the patent OFFICE. They need to grant a lot fewer patents. THAT is the actual problem. If fewer patents were issued, this would be a lot less of an issue.

I'd encourage you to read the link in my story about the past Supreme Court decisions. While the court doesn't use the phrase "software patent," it has clearly said you can't patent a mathematical algorithm. And software is nothing more than a collection of mathematical algorithms in machine-readable form.

No, Tim. It has not. What the Court has clearly said, for example, in Flook is that "it is equally clear that a process is not unpatentable simply because it contains a law of nature or a mathematical algorithm." 437 U. S. 590.

More specifically, it said that "[Flook's] process is unpatentable under § 101 not because it contains a mathematical algorithm as one component, but because, once that algorithm is assumed to be within the prior art, the application, considered as a whole, contains no patentable invention. Even though a phenomenon of nature or mathematical formula may be well known, an inventive application of the principle may be patented." 437 U. S. 594.

Your detailed analysis of the trio was relatively one sided, but ended up in the right place with Diehr - where the computer controlled curing process ("a collection of mathematical algorithms in machine-readable form") was, in fact, potentially patentable subject matter. Your method of reducing a computer program to mere algorithms is, legally, flat out wrong. The Supreme Court has never treated a computer program as only "a collection of mathematical algorithms," but also looks to both what is being sensed/input and what is being controlled/output as part of the "inventive application" aspect under Flook and Diehr.

If that code was patented, I would have had to write all of the code myself, which would take more time and testing to complete.

Actually, many software patents are far more insidious than that.

Even if you come up with your own implementation of a particular task, the end result could still well infringe on an overly-broad, poorly-specified patent. A lot of software patents effectively claim the very idea of doing something, rather than a specific method of accomplishing a task.

Say you created a new implementation for ordering goods or services from a website with a single click. Too bad: there's a patent for that, and you'd likely be sued into oblivion the instant you started making any sort of money from it.

Sure, the patent may well eventually be overturned, but that's of little comfort. Look at Samsung and how they've been found guilty of infringing Apple's pinch-to-zoom patent (amongst numerous others), only for the USPTO to re-examine the patent and discover a bunch of prior art. It should get as far as a multi-billion dollar lawsuit for these things to be checked properly.

Software is infinitely malleable and there are countless ways of getting a job done that genuinely represent new, innovative work and don't involve ripping off someone else's efforts. However, because of software patents in general (and some of the completely B.S. patents that should never have been awarded in the first place) it's becoming increasingly difficult to come up with anything more complicated than "hello, world".

Don't even get me started on patent trolls, non-practising fuckwits that don't produce a damn thing and leech off the work of others.

Until the system is fixed, things are going to get a whole lot worse. "Fixed" in this case may be to allow software patents so long as they're examined properly and laughed out of the patent office where there's any sort of prior art or vagueness involved, but I have the feeling that we'd be better off as a society ditching the whole damn thing. Copyright and Trademark law allows for the defence of intellectual property, so why do we need a third arm of the law for that?

No, Tim. It has not. What the Court has clearly said, for example, in Flook is that "it is equally clear that a process is not unpatentable simply because it contains a law of nature or a mathematical algorithm." 437 U. S. 590.

More specifically, it said that "[Flook's] process is unpatentable under § 101 not because it contains a mathematical algorithm as one component, but because, once that algorithm is assumed to be within the prior art, the application, considered as a whole, contains no patentable invention. Even though a phenomenon of nature or mathematical formula may be well known, an inventive application of the principle may be patented." 437 U. S. 594.

In other words, a mathematical algorithm cannot be patented, but something containing a mathematical algorithm and otherwise patentable subject matter can be. Tim didn't claim anything contrary to the latter, so you are making a strawman argument.

Quote:

Your detailed analysis of the trio was relatively one sided, but ended up in the right place with Diehr - where the computer controlled curing process ("a collection of mathematical algorithms in machine-readable form") was, in fact, potentially patentable subject matter. Your method of reducing a computer program to mere algorithms is, legally, flat out wrong. The Supreme Court has never treated a computer program as only "a collection of mathematical algorithms," but also looks to both what is being sensed/input and what is being controlled/output as part of the "inventive application" aspect under Flook and Diehr.

A computer program is always just a collection of mathematical algorithms. the Supreme Court has not contradicted that, and even if they did, it would be contrary to the truth. Your babbling about inputs and outputs seems to indicate you don't understand the difference between a computer and a computer program.

I'd encourage you to read the link in my story about the past Supreme Court decisions. While the court doesn't use the phrase "software patent," it has clearly said you can't patent a mathematical algorithm. And software is nothing more than a collection of mathematical algorithms in machine-readable form.

I'm well aware of this fact, but that doesn't change the underlying reality of the situation. The courts have ruled that you cannot patent a mathematical algorithm, but the question you have to ask is "what is that, really?"

A computer program can easily be more complicated than most new, patentable inventions, which ultimately are "merely" new ways of us arranging matter.

The Google search engine may be nothing more than a mathematical algorithm when you break it down to its most basic level, but it is used as a means of searching, not to spit out answers to math questions.

A book can be represented as a series of 1s and 0s in a machine; indeed, it has to be to be read on a computer. Does that mean a book, or a picture, is nothing more than a mathematical algorithm? You can't exactly copyright math, either.

Its pretty obvious that a lot of software is indeed more than a mathematical algorithm, even though it is represented in the form of such an algorithm inside the computer. I wouldn't call Call of Duty a mathematical algorithm, or say that NWN is a mathematical algorithm while D&D is a game. Neither of these are patentable either, but I think you get my point.

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Even if you come up with your own implementation of a particular task, the end result could still well infringe on an overly-broad, poorly-specified patent. A lot of software patents effectively claim the very idea of doing something, rather than a specific method of accomplishing a task.

Indeed. But this is, again, not the fault of the patent system, but rather the fault of the patent office granting bad patents.

The problem is that the patent office sees its job as to give out patents to its customers, rather than to ensure that said patents are indeed worthy of being patents.

The patent office needs to lean heavily towards rejecting invalid patents, as opposed to its current lean which is to grant even dubious patents.

I'm well aware of this fact, but that doesn't change the underlying reality of the situation. The courts have ruled that you cannot patent a mathematical algorithm, but the question you have to ask is "what is that, really?"

A computer program can easily be more complicated than most new, patentable inventions, which ultimately are "merely" new ways of us arranging matter.

The Google search engine may be nothing more than a mathematical algorithm when you break it down to its most basic level, but it is used as a means of searching, not to spit out answers to math questions.

A book can be represented as a series of 1s and 0s in a machine; indeed, it has to be to be read on a computer. Does that mean a book, or a picture, is nothing more than a mathematical algorithm? You can't exactly copyright math, either.

Its pretty obvious that a lot of software is indeed more than a mathematical algorithm, even though it is represented in the form of such an algorithm inside the computer. I wouldn't call Call of Duty a mathematical algorithm, or say that NWN is a mathematical algorithm while D&D is a game. Neither of these are patentable either, but I think you get my point.

The obvious is that all programs, all data stored on computers is nothing but numbers, programs are nothing but numerical operations. Anything which we can turn into a program, can thus be reduced to nothing but mathematical algorithms.

That doesn't mean it isn't patentable, because the point isn't the mathematical algorithm, but the purpose. If I make a new process for, say, packaging internet packets that is 20% more efficient, does the fact that it is a "mere" algorithm mean that it is unworthy of patent protection? What about if I made a new means of refining a metal that requires very fine computer control, does the fact that I can only do it via a computer, not by hand, mean that I cannot patent the process, even though a simpler process could be patented because I don't need to use a computer for it?

That is pretty clearly absurd, and yet that is what you are arguing for.

More specifically, it said that "[Flook's] process is unpatentable under § 101 not because it contains a mathematical algorithm as one component, but because, once that algorithm is assumed to be within the prior art, the application, considered as a whole, contains no patentable invention. Even though a phenomenon of nature or mathematical formula may be well known, an inventive application of the principle may be patented." 437 U. S. 594.

In other words, a mathematical algorithm cannot be patented, but something containing a mathematical algorithm and otherwise patentable subject matter can be. Tim didn't claim anything contrary to the latter, so you are making a strawman argument.

Yes, he did: "While the court doesn't use the phrase 'software patent,' it has clearly said you can't patent a mathematical algorithm. And software is nothing more than a collection of mathematical algorithms in machine-readable form." He substitutes the one for the other. You cannot undo the substitution merely because it is inconvenient for you.

It appears that you've never read the claims of the patent involved in Diehr: they claim the control method, i.e., the computer program itself, not a computer executing the control method or a storage medium containing the computer program (a so-called Beauregard claim). Thus, that was a "software patent," and allegedly one claiming nothing more than a mathematical algorithm.

knbgnu wrote:

DRJlaw wrote:

Your detailed analysis of the trio was relatively one sided, but ended up in the right place with Diehr - where the computer controlled curing process ("a collection of mathematical algorithms in machine-readable form") was, in fact, potentially patentable subject matter. Your method of reducing a computer program to mere algorithms is, legally, flat out wrong. The Supreme Court has never treated a computer program as only "a collection of mathematical algorithms," but also looks to both what is being sensed/input and what is being controlled/output as part of the "inventive application" aspect under Flook and Diehr.

A computer program is always just a collection of mathematical algorithms. the Supreme Court has not contradicted that, and even if they did, it would be contrary to the truth. Your babbling about inputs and outputs seems to indicate you don't understand the difference between a computer and a computer program.

Yes, it has, as a necessary result of Diehr. This is exactly what Tim stated, and exactly what I've quoted, and precisely the part that you've chosen to artificially separate from my so-called "strawman argument." Again, because you haven't actually read Diehr or the patent that was involved, you fail to understand that the substitution that is being made is not compatible with Diehr.

It is also not contrary to the truth. Under your definition, any process, whether executed on a machine or not, would constitute an algorithm (since I can carry out essentially any process via computer, any process is necessarily describable by sufficiently complicated 'math') -- yet the patent statute does, and always has, permitted the patenting of a process. 35 USC 101 (1952 Act). I am intimately familiar with the difference between a computer and a computer program. You, however, don't understand the distinction that the Supreme Court has consistently drawn between algorithms and inventive applications of algorithms in method claims such as those in Flook, Diehr,and the recent Prometheus decision (which follows the Flook analysis virtually exactly in finding that a method of medical treatment was unpatentable because the novelty of the method was found only in the law of nature involved -- thiopurine metabolism -- not the other steps which were conventional and obvious). You dismiss this are mere "babbling" at your own peril. The Supreme Court tends to hew to its own precedent (stare decisis), and will closely consider such "babble" under its Flook and Diehr precedents.

A computer program is always just a collection of mathematical algorithms. the Supreme Court has not contradicted that, and even if they did, it would be contrary to the truth. Your babbling about inputs and outputs seems to indicate you don't understand the difference between a computer and a computer program.

The principal claim in Diehr:

1. A method of operating a rubber-molding press for precision molded compounds with the aid of a digital computer, comprising:

providing said computer with a data base for said press including at least, natural logarithm conversion data (1n), the activation energy constant (C) unique to each batch of said compound being molded, and a constant (x) dependent upon the geometry of the particular mold of the press,

initiating an interval timer in said computer upon the closure of the press for monitoring the elapsed time of said closure

constantly determining the temperature (Z) of the mold at a location closely adjacent to the mold cavity in the press during molding

constantly providing the computer with the temperature (Z),

repetitively performing in the computer, at frequent intervals during each cure, integrations to calculate from the series of temperature determinations the Arrhenius equation for reaction time during the cure, which is 1n v=CZ+x[,] where v is the total required cure time,

repetitively comparing in the computer at frequent intervals during the cure each said calculation of the total required cure time calculated with the Arrhenius equation and said elapsed time, and

opening the press automatically when a said comparison indicates completion of curing.

Feel free to identify the part that is not computer software, and better yet, how any part that is not computer software is not merely an input or an output. Then we can discuss how the parts that you decide are not computer software, inputs, or outputs make the method patentable.

The obvious is that all programs, all data stored on computers is nothing but numbers, programs are nothing but numerical operations. Anything which we can turn into a program, can thus be reduced to nothing but mathematical algorithms.

Technically, it can be reduced to non-functional elements and algorithms. While JPEG is just an algorithm, a particular JPEG file is not. The copyright for the JPEG file lies in the nonfunctional parts, and what they are abstractions of. That's why the same copyright applies if I have the same file in BMP, RAW, PNG, or GIF form. It gets a bit nonsensical when looking from a technical understanding, and touches somewhat in 'what color are your bits' territory. Patents exclude non-functional elements since they only cover utility.

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That doesn't mean it isn't patentable, because the point isn't the mathematical algorithm, but the purpose. If I make a new process for, say, packaging internet packets that is 20% more efficient, does the fact that it is a "mere" algorithm mean that it is unworthy of patent protection?

Yes, provided that all the differences are in software. You are, however, looking at this from the wrong perspective. Things are by default unworthy of patent protection, and positive evidence must be provided that they are deserving a patent.

Quote:

What about if I made a new means of refining a metal that requires very fine computer control, does the fact that I can only do it via a computer, not by hand, mean that I cannot patent the process, even though a simpler process could be patented because I don't need to use a computer for it?

No, the mere involvement of software in a patentable process does not make it unpatentable. If the only difference from an existing method were the software on the computer controls, meaning that we were already using a computer with the same hardware, it would be unpatentable.

Yes, he did: "While the court doesn't use the phrase 'software patent,' it has clearly said you can't patent a mathematical algorithm. And software is nothing more than a collection of mathematical algorithms in machine-readable form." He substitutes the one for the other. You cannot undo the substitution merely because it is inconvenient for you.

It appears that you've never read the claims of the patent involved in Diehr: they claim the control method, i.e., the computer program itself, not a computer executing the control method or a storage medium containing the computer program (a so-called Beauregard claim). Thus, that was a "software patent," and allegedly one claiming nothing more than a mathematical algorithm.

The Diehr patent may have claimed itself as a patent on the software, but the majority Diehr opinion clearly states that it's a patent on a process for curing rubber.

knbgnu wrote:

It is also not contrary to the truth. Under your definition, any process, whether executed on a machine or not, would constitute an algorithm (since I can carry out essentially any process via computer, any process is necessarily describable by sufficiently complicated 'math') -- yet the patent statute does, and always has, permitted the patenting of a process. 35 USC 101 (1952 Act). I am intimately familiar with the difference between a computer and a computer program. You, however, don't understand the distinction that the Supreme Court has consistently drawn between algorithms and inventive applications of algorithms in method claims such as those in Flook, Diehr,and the recent Prometheus decision (which follows the Flook analysis virtually exactly in finding that a method of medical treatment was unpatentable because the novelty of the method was found only in the law of nature involved -- thiopurine metabolism -- not the other steps which were conventional and obvious). You dismiss this are mere "babbling" at your own peril. The Supreme Court tends to hew to its own precedent (stare decisis), and will closely consider such "babble" under its Flook and Diehr precedents.

Quote:

Feel free to identify the part that is not computer software, and better yet, how any part that is not computer software is not merely an input or an output. Then we can discuss how the parts that you decide are not computer software, inputs, or outputs make the method patentable.

Operating a rubber molding press is not computer software. Computer software can't do that. It can be done in combination with other hardware, but not the software itself. If I sit here on my computer running the program that they were using all day, no rubber is going to be molded.

The Diehr patent may have claimed itself as a patent on the software, but the majority Diehr opinion clearly states that it's a patent on a process for curing rubber.

Yes, and the software is the process. You'll note that the rubber is never mentioned or otherwise claimed, and that the rubber press is the device controlled. Almost all software claims state that something is controlled -- even if in funtional terms (stored, printed, displayed, etc.)

knbgnu wrote:

Operating a rubber molding press is not computer software. Computer software can't do that. It can be done in combination with other hardware, but not the software itself.

Oddly narrow interpretation of the term "operating." An ordinary interpretation would include the mere act of signaling the rubber press to open.

But I'm glad that you've so neatly resolved the problem. Happily, the step of storing a value is not computer software, since computer software can't do that. Nor the steps of printing, displaying, etc. They can be done in combination with other hardware, such as a register, a RAM cell, a disk drive, a printer, a monitor, etc., but not the software itself.

knbgnu wrote:

If I sit here on my computer running the program that they were using all day, no rubber is going to be molded.

No rubber is required to be molded in the claim. The press must be operated. Frankly, it could be empty. You're attempting to apply the "machine or transformation" test. But Bilski (2010 Supreme Court decision) stated that that could not be the exclusive test for patentability. Prometheus (2012 Supreme Court decision) required merely knowing a blood metabolite value -- not even measuring it -- and making a treatment decision based upon it. The Court did not say that the claim was attempting to claim a law of nature simpliciter, but that the claim was not novel and non-obvious when the production of metabolites by the body was treated as part of the prior art by virtue of it being a law of nature.

In addition, I'd like to see you convince others that "software patents" only involve such narrow matter. If I state that the software operates a device, such as a 3D printer, it's no longer a software patent? After all, it can't be the rubber itself that made the claim patentable -- that's an article of manfacture, not a process, and rubber and the process to cure it were known well before the 1970s when the patent was sought.

Following up, Prometheus comes quite close to rejecting the position that "software patents" are unpatentable as "nothing more than a collection of mathematical algorithms in machine-readable form." It may be dicta, but it is dicta expressed by four of the justices including the chief justice.

"It is true that patents for inventions that did not satisfythe machine-or-transformation test were rarely granted in earlier eras, especially in the Industrial Age, as explained by Judge Dyk’s thoughtful historical review. See 545 F. 3d, at 966–976 (concurring opinion). But times change.Technology and other innovations progress in unexpected ways. For example, it was once forcefully argued that until recent times, “well-established principles of patent law probably would have prevented the issuance of a valid patent on almost any conceivable computer program.” Diehr, 450 U. S., at 195 (STEVENS, J., dissenting). But this fact does not mean that unforeseen innovations such as computer programs are always unpatentable. See id., at 192–193 (majority opinion) (holding a procedure for molding rubber that included a computer program is within patentable subject matter). Section 101 is a “dynamic provision designed to encompass new and unforeseen inventions.” J. E. M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U. S. 124, 135 (2001)."

Stevens, the author of the dissent in Diehr, has retired, and Kagan is an unknown. In other words, don't think that the issue is as settled as you and Mr. Lee believe. It is not.

The Diehr patent may have claimed itself as a patent on the software, but the majority Diehr opinion clearly states that it's a patent on a process for curing rubber.

Yes, and the software is the process. You'll note that the rubber is never mentioned or otherwise claimed, and that the rubber press is the device controlled. Almost all software claims state that something is controlled -- even if in funtional terms (stored, printed, displayed, etc.)

Yes, but the crucial difference in Diehr is that the thing being controlled is a machine "performing a function which the patent laws were designed to protect"--like curing rubber. In contrast, in Flook, the court held that merely setting an "alarm limit" was not patent-eligible. A patent that covers information being "stored, printed, displayed, etc" are more like Flook than Diehr. And that suggests that most of what we think of as "software patents"--patents that cover a general-purpose computer performing some kind of calculation and outputting the result to the display, printer, speakers, network, etc--is closer to the Flook case of mere calculation than the Diehr case in which the invention was "transforming or reducing an article to a different state or thing."

To be clear, I'm not arguing this area of law is settled. The Supreme Court's software patent trio were not clearly written and are open to multiple interpretations. But I think those cases can plausibly be read to say that most current software patents are invalid on 101 grounds, and I wish EFF would say so.

It is SUPPOSED to be that you can't patent software. I fully agree with this stance. As a programmer, I know just how often I find myself take a piece of code that is similar to what I want to accomplish and putting into the system. From that point I will make the changes I want to make, but the code itself is a derivative. If that code was patented, I would have had to write all of the code myself, which would take more time and testing to complete. The end result would probably be similar looking code anyway, so I would still get hit with a patent lawsuit because it is similar.

That's the reason why software patents are ridiculous.

I'm not saying patenting an invention or new method isn't useful, but there have to be limits or we end up with the idiocy that is currently clogging our judicial system and innovation being ground to a halt.

Reform is the answer, not full-blown abolition.

Software Patents, no.Software Copyright, sure.

Software copyrights prevents people from stealing code from someone and marketing it as their own.Software patents does exactly what you said, it prevents derivative works, which is silly, considering that companies aren't training, and require decades of experience in existing languages, in which there are only a certain amount of ways you can perform the same task with the same language. Is "swipe to unlock" the real reason you bought Apple instead of Samsung?

I would also be in favor of crazy short terms for patents (if they just can't see it in their political bribery to eliminate them): 1-2 years, and your software patent is forced to expire (and become public domain -- no extensions). That gives you time to capitalize on your idea, but doesn't prevent follow-on derivatives.

Yes, and the software is the process. You'll note that the rubber is never mentioned or otherwise claimed, and that the rubber press is the device controlled. Almost all software claims state that something is controlled -- even if in funtional terms (stored, printed, displayed, etc.)

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Oddly narrow interpretation of the term "operating." An ordinary interpretation would include the mere act of signaling the rubber press to open.

But I'm glad that you've so neatly resolved the problem. Happily, the step of storing a value is not computer software, since computer software can't do that. Nor the steps of printing, displaying, etc. They can be done in combination with other hardware, such as a register, a RAM cell, a disk drive, a printer, a monitor, etc., but not the software itself.

And good luck suing the manufacturers of that hardware for violating those patents, especially since they've been capable of doing so for decades. Perhaps they'll have some luck suing end users, but that presents a lot of problems as well.

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No rubber is required to be molded in the claim. The press must be operated.

A rather minor concern, given that methods of operating presses are patentable processes. What would be relevant would be if no press was needed, but you obviously can't operate a press without a press to operate.

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Frankly, it could be empty. You're attempting to apply the "machine or transformation" test. But Bilski (2010 Supreme Court decision) stated that that could not be the exclusive test for patentability.

True, but it didn't positively state that there was actually anything that didn't pass MoT that was patentable subject matter. Patentable software remains entirely theoretical, and it will remain so unless a change occurs that undermines fundamental theses on computation, because all software fits entire in the sets of mathematical algorithms, abstract ideas, and mental processes, three things that have been explicitly excluded from patentability.

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In addition, I'd like to see you convince others that "software patents" only involve such narrow matter. If I state that the software operates a device, such as a 3D printer, it's no longer a software patent? After all, it can't be the rubber itself that made the claim patentable -- that's an article of manfacture, not a process, and rubber and the process to cure it were known well before the 1970s when the patent was sought.

A 3D printer could be a patentable invention, 3D printing methods could potentially be patentable, and computers would almost certainly be involved. However, there has to be substantial invention in the printing process itself..

I agree that someone should be arguing for the elimination of software patents.

But...

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There are already plenty of technology companies on Capitol Hill lobbying for patent reform legislation that is "politically feasible."

...let's not overstate it. I mean, clearly a lot of the companies who argue for what is "politically feasible" really mean they want to make very minor changes that will merely favor one party over another. I'm not sure there's an interested party who truly wants to reform the software patent system in any overall "good" way.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.